Citation NR: 9734087
Decision Date: 10/07/97 Archive Date: 10/09/97
DOCKET NO. 96-07 131 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1) Whether new and material evidence has been submitted to
reopen a claim of service connection for a back disorder,
claimed also as secondary to bilateral knee disorder.
2) Whether new and material evidence has been submitted to
reopen a claim of service connection for a right knee
disorder.
3) Entitlement to service connection for a left knee
disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
C. Allen, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1955 to
September 1956.
This matter comes before the Board of Veterans’ Appeals
(Board) from a July 1995 rating decision of the Department of
Veteran Affairs (VA) Regional Office (RO) in No. Little
Rock, Arkansas, which held that new and material evidence had
not been submitted to reopen the veteran’s claims for service
connection for a back disorder and bilateral knee disorder.
Because the Board finds that no decision with respect to the
veteran’s claim for service connection for a left knee
disorder has been rendered, it considers the claim an
original claim for service connection.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that the RO committed error
in denying his claim to reopen his claim for service
connection for back and knee disorders. Specifically, he
believes that new and material evidence has been submitted.
The veteran’s accredited representative, on behalf of the
veteran, has noted that the issue of service connection for a
left knee disorder has never been adjudicated.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that new and material evidence has
not been submitted to reopen the veteran’s claim for service
connection for a back disorder, claimed also as secondary to
a bilateral knee disorder, and a right knee disorder. In
addition, the Board finds that the veteran has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim for
service connection for a left knee disorder is well grounded.
FINDINGS OF FACT
1. All evidence necessary for an equitable adjudication of
the veteran’s claims has been developed.
2. By a May 1981 Board decision, the veteran’s claims for
service connection for a back disorder and right knee
disorder were denied.
3. In June 1995, the veteran submitted a request to reopen
his claim for service connection for a back and knee
disorder, which was denied by rating action in July 1995 and
properly appealed by the veteran.
4. No evidence has been received since the May 1981 Board
decision relevant to and probative of the issue of whether
the veteran’s current back disorder was incurred in or is
related to service.
5. While the evidence submitted since the May 1981 Board
decision is new, it is not material because, when considered
in the context of all the evidence of record, it does not
raise a reasonable possibility that the veteran’s current
back disorder was incurred in or related to service.
6. No evidence has been received since the May 1981 Board
decision relevant to and probative of the issue of whether
the veteran’s inservice right knee condition was chronic or
whether his current right knee disorder was incurred in or is
related to service.
7. While the evidence submitted since the May 1981 Board
decision is new, it is not material because, when considered
in the context of all the evidence of record, it does not
raise a reasonable possibility that the veteran’s current
right knee disorder was incurred in or related to service.
8. The medical evidence shows no complaint of or treatment
for a left knee disorder in service.
9. There is no competent evidence to establish a
relationship between the current left knee disorder and
service.
10. The veteran has not presented a plausible claim for
service connection for a left knee disorder.
CONCLUSIONS OF LAW
1. The May 1981 Board decision denying the veteran’s claim
is a final decision. 38 U.S.C.A. §§ 7104(b), 5108 (West
1991).
2. Evidence received since the May 1981 Board decision
denying the veteran’s claim for service connection for a back
disorder is not new and material, and, thus, the claim is not
reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R.
§ 3.156(a) (1996).
3. Evidence received since the May 1981 Board decision
denying the veteran’s claim for service connection for a
right knee disorder is not new and material, and, thus, the
claim is not reopened. 38 U.S.C.A. § 5108 (West 1991); 38
C.F.R. § 3.156(a) (1996).
4. The veteran has not presented a well-grounded claim for
service connection for a left knee disorder, and therefore
there is no statutory duty to assist the veteran in
developing facts pertinent to this claim. 38 U.S.C.A.
§§ 101(16), 1101, 1131, 5107(a) (West 1991); 38 C.F.R.
§ 3.303 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. New and material evidence
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West
1991). Direct service connection may be established for a
disability resulting from diseases or injuries which are
clearly present in service or for a disease diagnosed after
discharge from service, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(a), (b), (d) (1996).
Establishing direct service connection for a disability which
has not been clearly shown in service requires competent
evidence sufficient to show (1) the existence of a current
disability; (2) the existence of a disease or injury in
service; and (3) a relationship or connection between the
current disability and a disease contracted or an injury
sustained during service. 38 U.S.C.A. § 1131 (West 1991); 38
C.F.R. § 3.303(d) (1996); Caluza v. Brown, 7 Vet.App. 498,
506 (1995), aff’d, 78 F.3d 604 (Fed.Cir. 1996). Service
connection may also be granted for a disability on a
secondary basis, when said disability is proximately due to
or the result of a service-connected disease or injury.
38 C.F.R. § 3.310 (1996).
In this case, the record shows that the original rating
decision pertaining to this matter occurred in May 1980,
denying the veteran service connection for a right knee
injury and a back condition. After the veteran properly
appealed this decision, the Board, in a May 1981 decision,
affirmed the denial of service connection for both disorders.
In June 1995, the veteran sought to reopen his claim for
service connection for back and knee disorders with new and
material evidence; he also sought service connection for a
left knee disorder. In a July 1995 rating decision, the RO
denied his claim, determining that service connection was not
warranted because no additional evidence had been submitted
showing the development of a chronic back condition or a
chronic knee condition during service.
Under applicable law, “[i]f new and material evidence is
presented or secured with respect to a claim which has been
disallowed, the Secretary shall reopen the claim and review
the former disposition of the claim.” 38 U.S.C.A. § 5108
(West 1991). “New and material evidence” is defined as that
“not previously submitted to the agency decisionmakers which
bears directly and substantially upon the specific matter
under consideration, which is neither cumulative or
redundant, and which by itself or in connection with evidence
previously assembled is so significant that it must be
considered in order to fairly decide the merits of the
claim.” 38 C.F.R. § 3.156(a) (1996).
Thus, to reopen a claim that was previously and finally
disallowed, a two-step analysis must be conducted (“Manio
test”). Manio v. Derwinski, 1 Vet.App. 140, 145 (1991).
First, it must be determined whether the additional evidence,
submitted since the last prior final disallowance, is new and
material. Second, if such evidence is determined to be new
and material, the disallowed claim must be reopened and the
former disposition reviewed based on all the evidence of
record to determine the outcome of the claim on the merits.
Evans v. Brown, 9 Vet.App. 273, 283 (1996) (citations
omitted); Blackburn v. Brown, 8 Vet.App. 97, 102 (1995);
Colvin v. Derwinski, 1 Vet.App. 171 (1991).
The first prong of the Manio test, i.e., determining whether
the evidence presented or secured since the prior final
disallowance of the claim is new and material, involves three
questions: (1) whether the newly presented evidence is
“new”; if so, (2) whether it is “material” in the sense of
being relevant to and probative of the “issue at hand” in the
case; and, if so, (3) whether it is “material” in the sense
that, when viewed in the context of all the evidence, there
is a reasonable possibility of changing the previous
disallowance of the claim. Evans, 9 Vet.App. at 283
(citations omitted); Manio v. Derwinski, 1 Vet.App. 140, 145
(1991).
Evidence is “new” when it is not of record at the time of the
last prior disallowance and not merely cumulative of other
evidence that was then of record. Evans, 9 Vet.App. at 283
(citations omitted). Evidence before the Board in May 1981
and in regard to a back disorder and right knee disorder
consisted of service medical records and private medical
treatment records from 1976 to 1980. The veteran also
submitted two buddy statements.
As stated above, the veteran contends that he is entitled to
service connection for back and right knee disorders, and is
seeking to reopen the issues with new and material evidence.
Evidence pertaining to these disorders and which has been
added to the record since the May 1981 Board decision
consists of private treatment records from 1993 to 1995.
Although the Board finds that the additional evidence is
“new” in that it was not before the rating board at the time
of the previous denial, new evidence must also be “material”
to satisfy the first prong of the Manio test. As stated
above, this requires a determination as to whether the
additional evidence is relevant to and probative of the
issues at hand and, when viewed in the context of all of the
evidence, both old and new, has a reasonable possibility of
changing the disposition of the claims on the merits. Evans,
9 Vet.App. at 283. A determination of what is the “issue at
hand” in a case depends on the basis for the last final
denial of the claim. The Board decision in May 1981 is the
last final denial of record. It denied the veteran’s claim
for service connection for a back disorder because it found
no evidence that the veteran’s current back disorder was
incurred in service. In regard to his right knee disorder,
the Board found that, although the medical evidence showed an
inservice knee injury, there was no evidence of chronicity or
other link between the veteran’s current right knee disorder
and service. Thus, in the present matter, additional
evidence will be considered “material,” if it shows inservice
incurrence of a back disorder that is related to the
veteran’s current back disorder, or if it shows a link or
relationship between the veteran’s inservice right knee
injury and his current knee disorder.
The additional evidence consists of private treatment records
from the Holt-
Krock Clinic and Sparks Regional Medical Center. The records
show that, in November 1993, the veteran had fusion surgery
performed on his low back. It was noted, at that time, that
the veteran had a “history of low back pain and small leg
component secondary to an L4-5 spondylolisthesis.” A
subsequent progress note states that his back was doing fine,
although the veteran still had a little discomfort associated
with it. An operative report shows that, in 1995, the
veteran had follow-up surgery on his back in order to remove
a battery and wire. A March 1995 progress note indicates
that the veteran continued to have some pain in his back and
had further complaints of pain in his knees. It notes that
he had a history of internal derangement and a lateral
meniscectomy of his knees many years ago. It states that he
had chronic arthritis in both knees. The most recent record
is another progress note showing that the veteran had an
injection in his right knee, which significantly improved his
ability to do activities.
After having carefully reviewed the additional evidence, the
Board finds that the “new” evidence is not material to the
“issue at hand.” As stated above, for his back disorder,
this requires competent evidence of an inservice back injury
or other disease of injury related to the current back
disorder. In regard to his right knee disorder, this
requires competent evidence of chronicity or a link between
the veteran’s inservice right knee injury and his current
right knee disorder. Here, the additional evidence merely
details the most recent status of and treatment for the
veteran’s back and right knee disorders. In addition, the
Board finds that the additional evidence does not show that
the veteran’s back disorder was secondary to his knee
disability. Even if it did, service connection would still
not be warranted because the veteran’s right knee disorder
and left knee disorder, infra, are not service-connected
disabilities, as is required by law for a grant of service
connection on a secondary basis. See 38 C.F.R. § 3.310
(1996).
The veteran has submitted statements asserting that his knee
disorder was incurred in service and that his back disorder
is a secondary condition that was caused by his knee
disability. The Board accepts these statements as evidence
that the veteran incurred an inservice accident involving his
knee and physical symptoms that may have been experienced,
such as pain. See Espiritu v. Derwinski, 2 Vet. App. 492
(1992). However, statements by laypersons are not competent
evidence to diagnosis a chronic knee or back disability or to
establish the etiology of a current disorder. Espiritu v.
Derwinski, 2 Vet.App. 492, 495 (1992); see Moray v. Brown, 5
Vet.App. 211 (1993) (lay assertions of medical causation
cannot serve as the predicate to reopen a claim under 38
U.S.C.A. § 5108).
Overall, no evidence submitted since the May 1981 Board
decision establishes the requisite connection between the
veteran’s current back and right knee disorders and active
duty. Ultimately, when viewed in the context of all of the
evidence of record, the additional evidence is not
“material,” because it is not probative of the “issue at
hand” and does not raise a reasonable possibility of changing
the outcome of the claims. Smith v. Derwinski, 1 Vet. App.
178 (1991). See Cox v. Brown, 5 Vet. App. 95, 98 (1993);
Villalobos v. Principi, 3 Vet. App. 450, 452 (1992).
By failing to meet the requirements to satisfy the first
prong of the Manio test, supra, the additional evidence,
though “new,” is not “material.” As a result, it is not “new
and material evidence,” and the claim to reopen the final
disallowance of the veteran’s claims for service connection
for back and right knee disorders must be denied.
It is noteworthy that, even though evidence is not found to
be new and material, VA may be obligated under 38 U.S.C.A.
§ 5103(a) to advise a claimant of evidence needed to complete
his or her application. This obligation depends upon the
particular facts of the case and the extent to which the
Secretary of the Department of Veterans Affairs has advised
the claimant of the evidence necessary to be submitted to
reopen a VA benefits claim through the presentment of new and
material evidence. Graves v. Brown, 9 Vet.App. 172 (1996)
(per curiam), citing Robinette v. Brown, 8 Vet.App. 69
(1995). In this case, the RO fulfilled its obligation under
section 5103(a) in its October 1995 statement of the case, in
which the veteran was informed that the reason for the denial
of his claim was that no new and material evidence had been
submitted. Moreover, unlike the situation in Graves, the
veteran has not put the VA on notice of the existence of any
specific, particular piece of evidence that might be relevant
and probative to this claim and which might, if submitted,
create a reasonable possibility of changing the outcome of
the prior final decision on this claim.
II. Service connection
In considering the issue of entitlement to service connection
for residuals of a left knee injury, the Board must first
determine whether the veteran would be prejudiced by having
this claim considered on a de novo basis, when the RO
considered only whether new and material evidence had been
submitted to reopen the claim. The Board has noted that the
final decision on record pertains to the right knee and not
to the left. Bernard v. Brown, 4 Vet.App. 384 (1993),
provides that to establish no prejudice to the veteran by
rendering a decision on the merits of claims which were
denied on the basis of finality by the RO, it must be shown
that the veteran had sufficient notice of the need to address
those issues in his submissions, arguments, and his testimony
on appeal. The veteran has consistently argued his claim on
the merits and his arguments demonstrate his understanding of
the basic law and the requirement that a current left knee
disorder must have originated during service. The statement
of the case and Board decision with respect to his claim for
service connection for the right knee informed the veteran of
the applicable law and regulations with respect to service
connection, including the requirements for showing a chronic
disorder during service and the requirement of continuity of
symptomatology after discharge when chronicity during service
is not adequately shown. Lay statements have been submitted
by the veteran in an effort to show a nexus between an injury
during service and a current disability. In addition, the
Statement of Accredited Representative in February 1997
discusses the claim of service connection for a left knee
injury on the merits, referring to incidents during service.
Accordingly, we conclude that there is no prejudice to the
veteran by our rendering a decision de novo on the claim to
service connection for a left knee disorder.
In determining whether the veteran is entitled to service
connection, the Board must first determine whether his claim
is well grounded. The law provides that “a person who
submits a claim for benefits under a law administered by the
Secretary shall have the burden of submitting evidence
sufficient to justify a belief by a fair and impartial
individual that the claim is well grounded.” 38 U.S.C.A.
§ 5107(a) (West 1991). A well-grounded claim for service
connection is “a plausible claim, one which is meritorious on
its own or capable of substantiation.” Murphy, 1 Vet.App. at
81. The claim does not need to be conclusive, but it must be
accompanied by supportive evidence to meet the initial burden
put on the veteran by § 5107(a). Tirpak, 2 Vet.App. at 611.
Mere allegation or speculation that the disability had its
onset in service or is service connected is not enough to
make the claim well-grounded. Id.; see Franko v. Brown, 4
Vet.App. 502, 505 (1993); Grottveit, 5 Vet.App. at 92-93.
The three elements of a well-grounded claim are: (1)
competent evidence of a current disability as provided by a
medical diagnosis; (2) competent evidence of incurrence or
aggravation of a disease or injury in service as provided by
either lay or medical evidence, as the situation dictates;
and (3) a nexus, or link, between the inservice disease or
injury and the current disability as provided by competent
medical evidence. Caluza v. Brown, 7 Vet.App. 498, 506
(1995) (citations omitted); see also 38 U.S.C.A. § 1110
(West 1991); 38 C.F.R. § 3.303 (1996).
Generally, competent medical evidence is required to meet
each of the above three elements. The second element,
however, may be shown by other evidence when the types of
issues presented warrants it. Grottveit, 5 Vet.App. at 92-
93. For some factual issues, such as the occurrence of an
injury, competent lay evidence may be sufficient. However,
where the claim involves issues of medical fact, such as
medical causation or medical diagnosis, competent medical
evidence is required to satisfy the second element. Id. at
93.
In the present case, it is clear that the veteran has a
current left knee disorder. The most recent medical
evidence, consisting of private medical records from the
Holt-Krock Clinic and Sparks Regional Medical Center, dated
from 1993 to 1995, show that he has chronic arthritis of both
knees and has had a lateral meniscectomy of both knees. X-
rays confirm tricompartmental disease, primarily medially.
Because there is sufficient evidence of a current left knee
disorder, the determinative issue for a well-grounded claim
is whether there is evidence in the record of a disease or
injury in service that provides a link, or nexus, between the
veteran’s current left knee disorder and service. See
Caluza, supra. After careful review of the claims file, the
Board finds that no such evidence exists.
The Board has noted the request by the veteran’s
representative in his informal presentation in May 1997 that
the case be remanded to the RO because the service medical
records are incomplete and secondary evidence has not bee
obtained. However, the veteran’s service medical records are
presumed to have been apparently destroyed by fire at the
National Records Personnel Center in St. Louis, as certified
in February 1980, and morning reports were obtained. There
are several morning reports included in the claims file,
which show that the veteran was seen for medical attention on
three dates in June 1956. However, no injury is specified.
Another service record, dated June 1956, indicates that the
veteran had a “subsiding bruise, right knee,” and that, as a
result, he was put on temporary light duty. The available
service medical records show no treatment for any left knee
injury. Included in the claims file, and of great probative
value, is the veteran’s separation medical examination
report. It indicates that the veteran’s lower extremities
were normal upon separation from service. On the report, it
is noted that the veteran incurred a fracture of the right
knee in 1953, prior to service, with no sequela. No left
knee injuries or disorders are noted.
Subsequent to service, the first evidence of a left knee
disorder is a May 1976 private physician’s letter indicating
that the veteran had a past history of “popping” in both
knees. An August 1976 private physician’s letter indicates
that the veteran had a lateral semilunar cartilage excision
in 1970. A December 1976 neurodiagnostic report states that
the veteran had peripheral neuropathy of unknown etiology in
both lower extremities.
A March 1980 private outpatient report states that the
veteran’s lateral meniscectomy of the left knee occurred in
1967, and that, upon physical examination, a residual scar
was noted. Another outpatient report, dated September 1980,
shows that the veteran had subjective complaints of bilateral
knee pain from an inservice fall in 1956.
As stated above, the most recent medical evidence shows
treatment from 1993 to 1995 for chronic arthritis of both
knees, with tricompartmental disease confirmed by X-rays.
The claims file also includes two buddy statements, but they
make no mention of an inservice left knee injury,
specifically acknowledging only a right knee problem.
In light of the above, the Board finds that the claims file
contains no competent evidence of an inservice disease or
injury to the veteran’s left knee and, thus, no evidence of
the requisite link between the veteran’s current left knee
disorder and service. The Board has carefully considered the
veteran’s statements with respect to his claim; however,
through his statements alone, he cannot meet the burden
imposed by section 5107(a) as to a relationship between his
disability and service because lay persons are not competent
to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App.
492 (1992). In addition, although one outpatient record
summarily noted a history of an inservice fall in 1956, this
is not competent evidence for purposes of a well-grounded
claim. LeShore v. Brown, 8 Vet.App. 406, 409 (1995)
("Evidence which is simply information recorded by a medical
examiner, unenhanced by any additional medical comment by
that examiner, does not constitute 'competent medical
evidence' satisfying the Grottveit[ v. Brown, 5 Vet.App. 91
(1993)] requirement" as to determination of well-
groundedness, "and a bare transcription of a lay history is
not transformed into 'competent medical evidence' merely
because the transcriber happens to be a medical
professional.").
As a result, the Board finds that the veteran has not met his
initial burden of submitting a well-grounded claim for
service connection for residuals of a left knee injury, as
outlined in Caluza, supra.
Even though a claim is not well grounded, the VA may be
obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of
evidence needed to complete his application. This obligation
depends on the particular facts of the case and the extent to
which the Secretary has advised the claimant of the evidence
necessary to be submitted with a VA benefits claim.
Robinette v. Brown, 8 Vet.App. 69, 78 (1995). Here, unlike
the situation in Robinette, the veteran has not put the VA on
notice of the existence of any specific, particular piece of
evidence that, if submitted, could make his claim well
grounded. See also Epps v. Brown, 9 Vet. App. 341 (1996).
Accordingly, the Board concludes that VA did not fail to meet
its obligations under 38 U.S.C.A. § 5103(a) (West 1991).
Because there is no competent evidence indicating an
inservice left knee injury, nor any link between the
veteran’s current left knee disorder and service, the Board
finds that the veteran’s claim of entitlement to service
connection for a left knee disorder is not plausible. As a
result, his claim is not well grounded and, thus, fails.
ORDER
1. Because no new and material evidence has been submitted
to reopen a claim for entitlement to service connection for a
back disorder, claimed also as secondary to a bilateral knee
disorder, that benefit remains denied.
2. Because no new and material evidence has been submitted
to reopen a claim for entitlement to service connection for a
right knee disorder, that benefit remains denied.
3. Because it is not well grounded, the veteran’s claim for
service connection for a left knee disorder is denied.
BETTINA S. CALLAWAY
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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